Redway v. Gray , 31 Vt. 292 ( 1858 )

Poland, J.

I. As to the question raised upon the trial, whether it is actionable to charge one with stealing property of a less value than seven dollars, where the extent of the punishment provided by law, is a fine of twenty dollars or imprisonment in the county jail not more than three months, we are all agreed that such words are actionable. They impute an infamous crime, involving moral turpitude, and subject the person guilty of such an offence to .corporal punishment, and it has always been held, that when all these concur, the words are actionable per se. In the case of Billings v. Wing, 7 Vt. 439, Collamer, J. quotes with approbation Mr. Starkie’s definition, who says, “to impute any crime or misdemeanor for which corporal punishment may be inflicted in a temporal court, is actionable,” and in that case it was held that words charging the plaintiff with an aggravated assault upon his own mother, were not actionable. The reason given for the decision was that an assault and breach of the peace could only be punished by fine, and not by imprisonment, and though the offender might be imprisoned if he did not pay the fine, that such imprisonment was for the purpose of compelling payment of the fine, and not as punishment for the offence.

The ground of that decision would be a full authority in support of the action in this case, upon the charge in the first and fourth counts, for charging the plaintiff with stealing hay, because such offence would subject the plaintiff to corporal punishment.

But we are hardly satisfied with that criterion, for by that, it would now be actionable to charge one with having committed an assault or breach of the peace, for by our present statute those offences may be punished directly by imprisonment for a year; and yet we all apprehend that no one has ever supposed that such words were by this change of the statute made actionable. So now on a third conviction for selling ardent spirits, the party convicted is liable to imprisonment, but we do not suppose it would be actionable to say of a man, that he was guilty of even such a violation of the law restraining the sale of spirits. We think that in addition to the offence charged being punished corporeally, it must impute moral turpitude, and' that the true reason why assaults, and breaches of the peace, and violations of the liquor law are not such offences as make words charging them actionable, is, because they do not necessarily and in a legal sense imply moral turpitude. The offence of larceny does necessarily imply it, and there is no distinction between grand and petty larceny in this respect. The ruling of the county court on this point was clearly right.

II. The counts charging the defendant with saying that the plaintiff burnt his own house, etc., we are satisfied can not be supported, and should have been held insufficient when that question was presented by the plaintiff’s demurrer to the defendant’s pleas in bar; though the pleas are conceded to be defective. The real question is, do these words impute to the plaintiff a crime ? Arson at common law was the wilful and malicious burning of the house of another. The burning of a man’s own house was not arson, nor was it an offence at all, unless his house was in a town, or so near to the houses of other persons as to endanger them by the burning of his own, and even in such a case was holden not to be arson, but a misdemeanor.

By the statute of 7 & 8 Geo. IV., the setting fire to any house, etc., in the possession of the offender, or any other person, with intent to injure or defraud any person, was made a felony, and punished the same as arson.

Under this statute, the burning of one’s own house, with intent to defraud an insurance company who had insured it, has been held to constitute an offence within it, but I have not been able to find any case where, prior to this statute, such an act has been held to be criminal to any extent. Similar statutes now exist in Massachusetts and many of the other States, but we have none in this State, and we therefore are forced to say that it is neither a crime at common law, nor made so by any statute in force here.

Nor is the second count made good by the addition of the words imputing insolvency to the plaintiff. The plaintiff in that count alleges that he was a dealer in produce, etc., but he does not allege that these words were spoken of him concerning this trade or business at all, nor is it alleged that these words, said of him and his pecuniary condition, were not in fact true.

The third count, which charges the defendant with saying that the plaintiff burnt the house of his wife, in which he lived, we think can not be supported, because no crime was imputed thereby.

By the common law it was not arson for a tenant for years to burn a house of which he was in the possession under a lease nor where he was in possession under an agreement for a lease, for years, for it was said that while he was so rightfully in possession it was his own house. So it was held, too, that even under the statute of 7 & 8 Geo. IV, above referred to, a wife who set fire to her husband’s house was not within the statute. Much less could a husband, who was in possession of a house belonging to his wife, be guilty of arson in burning it. We are of opinion, therefore, that all the counts in the plaintiff’s declaration should have been held bad (except the first and fourth) upon the demurrer, and that they are also insufficient after verdict, and as the verdict is general, and it appears by the exceptions to have been upon the bad counts, as well as the others, we think that it can not be supported.

The judgment of the county court is therefore reversed, and a new trial granted.